Archive for April, 2011

ABC News (http://abcnews.go.com/politics) contained an article today in which readers could test their knowledge of the U. S. Constitution. The test consisted of 10 multiple-choice questions of moderate difficulty (or infinite difficulty, if you were forced to suffer through “social studies” instead of history in school). I am pleased to report that the answers provided by ABC News were all correct.

Now this may seem a little corny, but I think this was an excellent idea. I only wish the reporters and editors at ABC News and other news organizations would keep these proper notions of the Constitution in mind as they go about their daily jobs. It would be refreshing and beneficial to all of us if the news organizations reported the daily events going on in the government and in political parties with a critical eye toward what is allowed and not allowed under the Constitution. We would have less confusion, and the politicians and bureaucrats would have less opportunity to keep the public in the dark.

One of the questions in the test was to recognize the opening lines of the Constitution: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain an establish this Constitution for the United States of America.” But how can it be said that the people established it, if in fact it required ratification by the states?

The answer lies in the fact that each state that ratified it did so at a ratifying convention called for that purpose in each state, and each delegate sent to it was tasked with representing the people of the state. The U. S. Constitution is the founding document of a compound democratic republic established by republican means, that is, when the people are represented by those they trust, and accept the results of a vote of the specified majority. In this way, although the representatives cast their votes directly, those votes matter only because the full weight of the people’s confidence is behind them.

James Madison mentions this principle in The Federalist No. 43, first quoting the provision of Article 7 that specifies the requirements for putting the Constitution into effect:

“9. The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States ratifying the same.”

“This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention which our own experience would have rendered inexcusable.”

Madison was echoing a sentiment expressed earlier by John Jay in The Federalist No. 2:

“Admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation nor to blind reprobation, but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive.”

The people of that generation had a choice in the matter of how they would be governed. We have choices too, but we will make the correct ones, that is, the method choosing our representatives and regulating their conduct, only if we reject the usual “blind approbation” and “blind reprobation” that so often passes for news these days.

Mr. Steven Thomma, a reporter covering the White House for the McClatchey Newspapers, published an article today called “Obama: The New ‘W’”. Mr. Thomma recounts the historical facts regarding how Mr. G. W. Bush initiated both wars in Afghanistan and Iraq by first obtaining approval from Congress, whereas Mr. Obama proceeded to conduct warfare against Libya, who did not pose an imminent threat, without even notifying Congress. Mr. Thomma also quoted Mr. Obama from an interview in 2007, prior to his election to the Presidency, in which Mr. Obama confirmed his view that Presidents do not in fact have a unilateral power to initiate war unless an attack upon the U. S. is so imminent as to preclude approval from Congress.

It seems that Mr. Obama understood the importance of gaining Congressional approval while he was a member of Congress; but now that he is President, it seems like he is not so particular about the Constitutional provision. For us, it is important to understand why those powers were divided as they were.

James Madison made a point about the general powers of the federal government in regard to war and peace in The Federalist No. 41, without discussing directly how such power was allocated between Congress and the Executive. He first summarizes the six general classes of powers to be granted under the Constitution, the first being “security against foreign danger”. He then addresses what particular powers fall in that class:

“The powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling out the militia; of levying and borrowing money.

Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.

Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form.”

This is sufficient for explaining why war power in general exists at the federal level; but why is the particular power lodged with Congress? For that, we have to recount the debates in the Constitutional Convention of 1787. On the 6th of August, a committee had presented a draft of a constitution, one article of which stated that the national legislature (Congress) shall have the power “to make war”. Here is the text of the debate on 17 Aug 1787 on this subject, per Madison’s notes [1]:

“On the clause “to make war” –

Mr. Pinckney opposed the vesting this power in the legislature. Its proceedings were too slow. It would meet but once a year. The House of Representatives would be too numerous for such deliberations. The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions. If the states are equally represented in the Senate, so as to give no advantage to the large states, the power will, notwithstanding, be safe, as the small have their all at stake, in such cases, as well as the large states. It would be singular for one authority to make war, and another peace.

Mr. Butler. The objections against the legislature lie, in a great degree, against the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it.

Mr. Madison and Mr. Gerry moved to insert “declare”, striking out “make” war, leaving to the executive the power to repel sudden attacks.

Mr. Sherman thought it stood very well. The executive should be able to repel, and not to commence, war. “Make” is better than “declare”, the latter narrowing the power too much.

Mr. Gerry never expected to hear, in a republic, a motion to empower the executive alone to declare war.

Mr. Ellsworth. There is a material difference between the cases of making war and making peace. It should be more easy to get out of war than to get into it. War, also, is a simple and overt declaration; peace, attended with intricate and secret negotiations.

Mr. Mason was against giving the power of war to the executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging, rather than facilitating, war; but for facilitating peace. He preferred “declare” to “make”.

On the motion to insert “declare”, in place of “make”, it was agreed to.

Mr. Pinckney’s motion, to strike out the whole clause, was disagreed to, without a call of states.

Mr. Butler moved to give the legislature the power of peace, as they were to have that of war.

Mr. Gerry seconds him. Eight senators may possibly exercise the power, if vested in that body, and fourteen if all should be present, and may, consequently, give up part of the United States. The Senate are more liable to be corrupted by an enemy than the whole legislature.

On the motion for adding “and peace” after “war”, it was unanimously negatived.

Adjourned.”

This was the only debate on the subject in the Convention as a whole. Re-reading Mr. Gerry’s comment again, it is shocking, is it not, the degree to which these men distrusted putting too much power in one place? As we all know (or should know) Article I, Section 8 of the U. S. Constitution gives Congress the power to declare war, but Article II, Section 2 grants the President the power to make treaties, with the concurrence of two-thirds of the Senate. This is how the founding fathers wisely distributed the powers of war and peace.

[1] Jonathan Elliot, Debates on the Adoption of the Federal Constitution, in the Convention Held at Philadelphia in 1787; With a Diary of the Debates of the Congress of the Confederation; As Reported by James Madison, Philadelphia: J. B. Lippincott & Co., 1881, Vol. 5, pp. 438, 439

An interesting story by Nancy Cordes at CBS News called “Is Anyone in Washington Minding the Store?” (see http://www.cbsnews.com/stories/2011/04/22/eveningnews/main20056610.shtml?tag=stack) reveals that Congress has chosen to take a two-week vacation. In doing so, they are deferring several important issues, especially the federal budget. But, as Ms. Cordes notes at the end of her column, the Members of Congress regard this time away from Washington essential to their duties because it gives them the opportunity to “spend more time in their home districts.”

I hope they are not spending too much time back home discussing local issues, when the main focus of Congress should be on national issues. I would think that each Member of Congress knows the sentiments of the people of his state or district fairly well by now — they were elected by those same people, weren’t they? If they don’t know them by now, maybe Congress should only be in session for a few months out of the year, so the Members can spend time actually living in their districts. It seems Congress has gradually drifted toward the federalization of local issues as expressed in the federal budget rather than concentrating its efforts where they belong, on the truly national issues. In order to pass legislation that is beneficial for the entire nation, the Members of Congress would do well to become familiar with how that legislation would affect all the states, not just their own. The power to enact a budget naturally depends on the power to tax; the power to tax is most wisely used by those who have a general sense of the conditions in all the states. As Hamilton pointed out in The Federalist #35:

“There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or to sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to obtain a judicious exercise of the power of taxation, it is necessary that the person in whose hands it is should be acquainted with the general genius of the people at large, and with the resources of the country.”

Madison continued this line of reasoning in The Federalist #57:

“The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the States.”

But our Members of Congress prefer to focus on local issues, to ensure that those are given preferential treatment as best as possible in federal legislation. It is much to be preferred that Congress concentrate its energies on the few things it ought to be doing, that is, develop policies at the national level, consistent with the best interests of the nation as a whole.

A report by http://www.thenewspaper.com/news/34/3458.asp from 19 Apr 2011 discusses a practice sanctioned by the Michigan State Police in which officers are equipped with a scanning device that allows them to download all the information contained on a cell phone, including pictures, calling history, and texts. Apparently the State Police are allowed to extract all this data from the cell phone of anyone stopped for minor traffic violations. The ACLU has so far been unsuccessful in finding out what the rules of engagement are, that is, under what circumstances the police actually collect the data, and what it is subsequently used for.

This only shows how far away we have gotten from the Fourth Amendment to the U. S. Constitution (and mirrored by Article I, section 11 of the Michigan state Constitution), which requires a search warrant signed by a judge and supported by an oath in order to conduct a search, with a few exceptions. Apparently the Michigan State Police are both officers and judges, since they apparently can determine entirely on their own when a search is “justified”.

Historically, the Fourth Amendment arose after the ratification of the U. S. Constitution in order to ensure that the new federal government did not commit the same abuses against the people that had provoked the Revolutionary War only 30 years earlier. (The Fourth Amendment was not proposed until 25 Sep 1789, and was not ratified by the states until 15 Dec 1791. It was not part of the original Constitution, which was ratified by the required ninth state, New Hampshire, on 21 Jun 1788.) The provocation I am referring to in 1761 was the imposition of “writs of assistance” by the British crown upon the people of Massachusetts.

The “writ of assistance” was first established by the British under Charles II. The main purpose was to aid enforcement of the revenue laws. They were issued by the British Chancellor of the Exchequer (similar to our Secretary of the Treasury) to any officer of the crown. The writ required everyone who was employed in any commerce to cooperate with crown officials to make sure the revenue laws were being obeyed, that is, to ensure duties and excises were being paid, and to suppress smuggling. But, in practice, they were not limited to just operators of customs houses; they applied equally to every person in the colony. They allowed any officer of the crown to conduct a search of any person or premises, without any evidence that any violation of the revenue laws had been committed. Naturally, such a power is easily abused. It is worse than that: they demand abuse, and even if not abused, are a violation of the basic principles of privacy and presumption of innocence. These writs had the effect of turning everyone into a revenue agent of the crown; they could not be challenged; the motivation for a search could not be examined; they subjected everyone to the arbitrary caprice, prejudice, or malice of any minor clerk in the department of revenue. A Massachusetts lawyer named James Otis stated his opposition to the writs in a hearing in Boston in February of 1761, when the writs were being reviewed. He asserted that Parliament had no power to establish such a writ; that they are null and void because no act of Parliament against the constitution is legitimate.

But the chief justice of Massachusetts at that time, Thomas Hutchinson, permitted the writs to be valid and enforceable in Massachusetts. These later turned out to be a major factor in the cause of independence from Great Britain.

In retrospect, one has to give the British their due. At least the Chancellor of the Exchequer took the time and effort to issue a writ of assistance to enforce a particular law. In the state of Michigan, in 2011, we have rank-and-file police officers conducting searches as they please, without regard for any law or the Constitution that they allegedly took an oath to uphold.

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